Sunday, April 27, 2008

Yulia Tymoshenko’s recent policy determination to support a democratic parliamentary system is the correct decision putting the interests of Ukraine ahead of party personal politics and brings Ukraine more in line with European standards.

Most, if not all, the divisions and political instability in Ukraine is a result of the ongoing power struggle between the Office of the President and the Parliament.

Contrary to various statements made by the president’s supporters, the President has too much power, power that more often then not is open to abuse. This is not a new conflict unique to Ukraine.

Ukraine is a young democracy having been under a parliamentary system for just over two years. Ukraine made a mistake in not adopting a parliamentary system of government from day one. Had it adopted a parliamentary system, as other Eastern European states had, it would most likely be a member of the European union of on the short list by now.

If Ukraine wants to be a part of Europe then it should adopt a European parliamentary system of governance. There are many examples of successful parliamentary systems. Great Britain, Canada, Australia, New Zealand, India, Germany, Finland, Sweden. Most of Europe is governed under a Parliamentary system.A full parliamentary system of governance is preferable for Ukraine.

The Presidential system where power is invested in the hands of one individual has failed to provide stable and effective democratic governance. A full parliamentary system would provide more effective accountability and proper checks and balances. A presidential system does not. The question of Presidential immunity places the head of state beyond the rule of law or public accountability.

Having made the decision to support a democratic parliamentary model the next issue lies in the detail of the model of representation and method of elections to be adopted.

Should Ukraine adopt a bicameral (Two chambers) parliament?

Personally I think it is a waste to resources and provides little in terms of checks and balances. The question needs to be asked who and on what basis would the mandates and representation of each chamber be different? Normally a two house subsystem applies to a federation of sorts. Does Ukraine divide and then reunite under a federal system similar to Australia and Canada? It could work, but for again to what benefit? It is a myth to assume that a bicameral parliament provides effective checks and balances.

Should Ukraine change the system of representation to provide for an open list?

There is some merit on the idea of moving away from a national party list system but this would require the creation of local electorates based on a constituents prime place of residence, as an open-list nation-wide system would be too broad and impossible to implement.

There could be a temptation to create single member electorate. This might work if Ukraine adopts a two house parliamentary system – one house represented constituencies electing a single member and the other by multi-member constituencies but this also has its limitations and depends very much on the type of electoral system adopted. A first-past-the post system would be a complete disaster and would undermine democracy. First-past-the-post systems are outdated and the most undemocratic system in use today. (America, Canada and the USA all use a first-past-the-post voting system)

An Alternative system

It is possible, and would be more desirable, to create smaller local multi-member electorates with each electorate returning nine members of parliament elected on a 10% quota by preferential proportional voting system. The overall make-up of the parliament would be more or less the same but parties will have the increased opportunity to appeal to voters more directly for support in order to be elected.

By maintaining multi-member local constituencies voters would be democratically and fairly represented.

Smaller based electorates allow for less costly and easily managed local campaigns as opposed to the nation wide party list system. They key to such a system is the small multi-member electorate and each electorate being equal in representation and percentage of quota required to be elected.

Ukraine must avoid the temptation to artificially increase the representation threshold. With the creation of smaller nine-member electorates there is no need for a threshold barrier as the 10% quota required would be sufficient.

Ukraine should adopt a preferential voting system as to prevent citizens who support minor candidates from being disenfranchised. Under a preferential system voters are redistributed according to the voters/parties nominated order of preference. If their preferred chosen candidate is not elected then their vote is used to determine who would best represent their point of view. Australia, as an example, has a two-house system - one single member and one multi-member chamber elected by a single round preferential voting system.

The President

The president’s power and authority should be restricted. Power should remain with the peoples democratically elected parliament representatives who maintain the necessary checks and balances over the executive. (Britain’s West Minster and Finland systems are a good example)

If the head of states role is limited to that of a monarch in a modern constitutional democracy, the direct election of a head of state should be avoided as there is no justification for a directly elected head of state. Canada, Australia and New Zealand, whilst they maintain allegiance to the Queen of England, are effectively represented by an appointed governor who acts as their head of state

The costs of a directly elected president, particularly given that there are better democratic alternatives, are excessive. In the USA the appointment of the president (It needs to be noted that the USA does not directly elect their head of state) costs billions of dollars and what do they get for this high cost? The costs of directly electing the President of France is a waste of money (The French have a unnecessary “two-round” voting system which increases the costs significantly). The French model should be avoided at all costs. Democracy is not determined by the number of elected positions. Even Russia's system of direct election of its head of state, be it a significant improvement on the US system, can not be justified in terms of any cost benefits it may provide.

Ideally the head of state with limited powers should be appointed by a Constitutional Parliamentary majority (2/3rds).

If the parliament can not agree or Ukraine opts for direct election of its head of state then the election should be conducted using a “single round” preferential ballot. (Also referred to as Instant Runoff voting).

A preferential voting system would ensure that the head of state is elected by a majority (50% or more) votes without the need to hold two round of voting. If no single candidate receives 50% or more votes then the candidates with the least votes are excluded and their votes redistributed according to the voters express preference until one candidate receives more then 50% of the vote.

Ukraine could save `100’s of millions of dollars in direct and indirect costs as a result of adopting a preferential voting system. Preferential voting is widely sued thought Australia and some state in the USA and in Ireland.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.